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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Clarence MOSS, Defendant-Appellant.

Decided: October 13, 2005

ANDRIAS, J.P., FRIEDMAN, SULLIVAN, GONZALEZ, JJ. Richard M. Greenberg, Office of the Appellate Defender, New York (Joseph M. Nursey of counsel), for appellant. Robert T. Johnson, District Attorney, Bronx (Yael V. Levy of counsel), for respondent.

Judgment, Supreme Court, Bronx County (Phylis Skloot Bamberger, J.), rendered March 4, 2003, convicting defendant, after a jury trial, of murder in the first degree and two counts of sexual abuse in the first degree, and sentencing him to an aggregate term of life without parole, unanimously affirmed.

 Defendant was convicted of the killing and sexual abuse of a 10-year-old neighbor who had returned from school.   Her body was found in the hallway with a trail of vomit leading to the door of defendant's apartment.   The court properly denied defendant's motion to suppress clothing seized from him while he was unlawfully detained, because the seizure was not the product of the illegal detention, but of police investigation, which established probable cause to believe that the clothing contained evidence (see e.g. People v. Watson, 259 A.D.2d 380, 687 N.Y.S.2d 119 [1999], lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949 [1999] ).   In any event, were we to find any error regarding this ruling, we would find it to be harmless in view of the overwhelming evidence of defendant's guilt, with particular reference to DNA evidence that was found on a pillowcase recovered from inside defendant's apartment, and on the doormat outside his apartment.

With regard to the other suppression issue raised on appeal, the record fully supports the court's determination that defendant's wife voluntarily consented to the initial police entry into the apartment, which determination is supported by the record (see e.g. People v. Charbonier, 220 A.D.2d 221, 631 N.Y.S.2d 696 [1995], lv. denied 87 N.Y.2d 899, 641 N.Y.S.2d 229, 663 N.E.2d 1259 [1995] ).

Defendant's constitutional challenge to the sentencing scheme for murder in the first degree is unavailing (People v. Hansen, 99 N.Y.2d 339, 756 N.Y.S.2d 122, 786 N.E.2d 21 [2003] ).